Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Labor and Employment Law > Labor Law > Flashcards

Labor Law Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards MPRE flashcards Civil Procedure 1L flashcards
1
Q

Wagner Act of 1935

A

NLRA; Sections 7 8 and 9

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Concerted Activity

A

NLRA Sec. 7; act to enforce CBA or band with other workers for better work conditions; for the mutual benefit of all employees or bargaining unit.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

NLRB Structure

A

5 board members - 5 yr terms; GC 4 yr term; four divisions; regional offices/attorneys; ALJ

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Unfair Labor Practice

A

NLRA Sec. 8; 6 months SOL; file “CHARGE” with Regional office.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

ULP by Employer

A

NLRA Sec. 8(a): no interference, restraint, or coercion.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Can ULP strikers be replaced?

A

No.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

ULP by Union

A

NLRA Sec. 8(b); union cannot restrain, coerce with respect to Sec. 7 rights; cannot engage in secondary boycott; cannot picket for recognitional or org. purposes longer than 30 days; no “hot cargo” agreement

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

30-day picket rule

A

Sec. 8(b)(C); it’s an ULP for union/ EE to picket for recognition for more than 30 days

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

secondary boycott rule

A

not allowed per Sec. 8(b)(4); union cannot force boycott of secondary employer who does business with employer with whom union has a dispute.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

“hot cargo” rule

A

cannot require an employer to not do business with some other person with whom the union has a dispute (NLRA Sec. 8(b)(8))

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Taft-Hartley Act of 1947

A

aka Labor Management Relations Act; prohibited union ULP; makes CBA enforceable in federal court.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Landrum-Griffin Act of 1959

A

aka Labor-Management Reporting and Disclosure Act; regulates union activity; broadened coverage of secondary boycott provisions and partially restricted representational picketing rights of union.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Does NLRB adjudicate labor issues in bankruptcy case?

A

No, the Bankruptcy judge does.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

When does NLRB hear a case about ULP?

A

Only when complaint is issued. GC discretion is unreviewable.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Equitable tolling for ULP complaint SOL

A

possible if fraudulent concealment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

3 ways to establish union representation

A

Voluntary by employer; Bargaining (“Gissel”) Order; Election Petition

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Election Petitions

A

Certification of Representation (“RC”); Representation petition (“RM”); Decertification Petition (“RD”); Withdrawal of Union Shop Authority petition (“UD”); Unit Clarification (“UC”); Amendment of Certification (“AC”)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

RC petition

A

Filed by employees or union. Must have at least 30% “showing of interest”

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

RM petition

A

filed by ER; no showing of interest required; ER must have reasonable basis to believe incumbent no longer represents majority.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

RD petition

A

filed by employees if 30%< no longer want union representation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Election Bar

A

one year from date of preceding final and valid election

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Certification Bar

A

one year from certification date (not election date)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Contract Bar

A

Term of CBA or 3 years, whichever is shorter, during which rival union cannot file petition except between 90-60 days before expiration of CBA

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Sabine Pilot

A

exception to at will; SOLE reason for discharge must be refusal to do an illegal act that would subject EE to criminal liability; must be discharged

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Mixed motive in Sabine Pilot?

A

No.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Private COA for whistleblower in TX?

A

No, unless in one of the occupations that has statutory protection.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Duty to investigate before terminate EE?

A

No statutory

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

SOL for Pay day claim

A

180 days to file with TWC but no admin prerequisite

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Vicarious liability for negligence by EE

A

must have been engaged in duties & activities within scope of employment; strict liability for higher employee acting on behalf of ER; ER knew or should have known

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

negligent hiring/retention

A

ER knows or should have known w/ exercise of reasonable care that EE was incompetent, unfit, or otherwise dangerous and ER failed to take reasonable measures to prevent injury to others

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Joint employer

A

share control

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

Whistleblower SOL for public employees

A

90 days.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

Chapter 451 of Tex. Labor Code

A

Workers’ Comp. statute: Protects against discrim/retaliation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

What ER are covered by TLC Ch. 451

A

Only subscribers

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

EE BOP for Ch. 451 claim

A

(1) filed a WC claim in good faith or instituted a proceed (2) causal connection with AEA and (3) “but for” causation (mixed motive okay)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

Texas Covenant Not to Compete statute

A

Tex. Bus & Comm Code Secs. 15.50 - 15.52

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

CNC to be enforceable, must be…

A

ancillary to an otherwise enforceable agreement (supported by consideration more than $$).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

CNC reasonable limitations of…

A

scope, geography, time

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

Time period usually found reasonable for CNC

A

2-5 years, depending on balancing ER interest with EE interest

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

CNC must not…

A

“impose a greater restraint than is necessary to protect the goodwill and business interests of the ER”

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

blue pencil

A

Court may revise CNC if overly broad or strike out; ER cannot recover damages, only injunctive relief

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

Non-solicitation agreements

A

same test at CNC under the Act

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

Can lawyers and doctors have CNC?

A

No for lawyers. Doctors must have access to 1-year patients list.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
44
Q

Remedies for violating CNC

A

Actual; punitive if fraud or malice; injunctive relief; attorneys’ fees; civil penalties for theft of trade secrets (TUTSA)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
45
Q

Texas Arbitration Act

A

ARB agreement must be in writing, signed by each party, reference by incorporation okay, and must meet general terms of a K; like FAA, court doesn’t have discretion not to enforce ARB agreement

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
46
Q

FAA vs. Tex Arb Act

A

TAA excludes several types of claims that FAA doesn’t, so FAA preempts if it applies.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
47
Q

FAA

A

interstate commerce; contract has clear agreement; meets other contract rules; court must enforce ARB; court cannot vacate ARB award unless one of 4 facts apply. Presumption in favor of ARB

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
48
Q

to vacate an ARB award under the FAA:

A

court must find (1) award was procured by corruption, fraud or undue means; (2) there is evidence of partiality or corruption among arbitrators; (3) arbitrators were guilty of misconduct which prejudiced rights of one party; (4) or arbitrators exceeded their powers.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
49
Q

FCRA

A

Fair Credit Reporting Act

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
50
Q

FCRA applies to what?

A

When ERs use credit reporting agency to obtain background info re applicant or EE

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
51
Q

FCRA rules

A

must obtain written consent from applicant/ EE; must provide results to EE within 3 business days (3 days for invest. CR) if taking AEA and provide reason and rights under FCRA; FCRA applies to credit reports and investigative Consumer reports; EE has right to contest in 60 days and right to know who the CRA is. ER must certify to CRA that ER followed FCRA rules. FCRA disclosure and acknowledgment must be separate document(s); if applicant requests- ER must provide full CR disclosure within 5 days of request; there is individual liability.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
52
Q

Penalties for violating FCRA

A

actual damages ($100-$1,000); punitive, costs and attorneys’ fees. No punitive for negligent noncompliance.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
53
Q

FCRA rules for EE making less than $75k/year

A

CRA may not supply ER with info re 10+ yr old bankruptcy and not other adverse info (e.g., tax liens, credit collection, convictions, etc.) 7+ years old

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
54
Q

SOL for FCRA

A

2 years after EE discovers, not more than 5 years after occurred

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
55
Q

Title VII of the Civil Rights Act of 1964

A

protects certain groups; applies to ER with 15+ employees

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
56
Q

EE req’t of T 7

A

15+ (any) employees in each of 20+ calendar weeks in the current or proceeding calendar year

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
57
Q

EEOC requirements for T 7 claim

A

file with EEOC in 300 days (180 days if file with TWC); 90 days file suit after RTS letter

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
58
Q

TCHRA requirements for TWC

A

180 days to file with TWC; 60 days to file suit after RTS letter.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
59
Q

T 7 protected classes

A

RNCLRS: Race, National Origin, Color, Religion, Sex (includes gender and pregnancy)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
60
Q

THCRA protected classes

A

RNCLRS + age and disability (15+ employees even for age)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
61
Q

BFOQ

A

bonafide qualification: Defense to discrim claim; must relate to essence of central mission of ER’s business. not available for Race or Color

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
62
Q

McDonnell Douglas burden-shifting framework

A

(circumstantial cases only) Burden of proof always with plaintiff; if est. prima facie case, then burden of persuasion shifts to ER; if ER proffers LNDR; then burden shifts back to EE to rebut with pretext.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
63
Q

Causation / mixed motive in T 7 claims

A

but for causation if mixed motive: ER must show that it would have taken AEA absent impermissible factor

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
64
Q

T 7 prima facie disrimin case

A

(a) protected class (b) qualified for job (c) AEA (d) because of protected class or treated less favorably or replaced by someone not in protected class.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
65
Q

Retaliation

A

(a) engaged in protected activity (b) AEA (c) causal connection

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
66
Q

AEA

A

adverse employment action that affects term or condition of employment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
67
Q

harassment

A

egregious; affects work conditions

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
68
Q

quid pro quo

A

sexual harassment; offer benefit in exchange for sexual act

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
69
Q

protected activity

A

oppose or participate in an action that EE reasonably believes violates T 7 (objective standard)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
70
Q

disparate impact

A

neutral policies applied equally have disproportionate adverse effect on protected group

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
71
Q

After acquired evidence

A

may be a defense to limit damages; ER shows that it would have taken same AEA if it discovered AAE

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
72
Q

duty to mitigate

A

EE must try to find comparable job; does not need to lower standards, but may need to lower sights. Is not required to take substantially lesser job.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
73
Q

Remedies for T 7 / TCHRA violation

A

reinstatement (but front wages if no reinstatement); injunction; lost wages (back & front pay); interest; compensatory; punitive; attorneys’ fees/costs

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
74
Q

Punitive damages for T 7 violation

A

if violation was willful (knowing, malicious; or reckless)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
75
Q

Statutory caps under T 7

A

for comp/pun damages only: 15 - 100 [$50k] 101-200 [$100k] 201-500 [$200k] 500+ [$300k]

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
76
Q

ADEA damages

A

same as T 7 except no comp/punitive damages

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
77
Q

Can defendant get attnys fees if prevails?

A

Yes, if suit was frivolous or w/o foundation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
78
Q

Religious accommodation

A

affirmative duty to accommodate religious practice for sincerely held belief if not an UNDUE hardship

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
79
Q

Undue hardship under T 7

A

If ER cannot accommodate because cost is too high

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
80
Q

Posting and recordkeeping for EEOC

A

EEOC must be posted in conspicuous location; EEO-1 must be filed by ER with 100+ ee (not gov’t or schools, or tax exempt private membership clubs); EEO-1 includes breakdown of EE according to race, sex and ethnic categories; filed annually

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
81
Q

42 USC 1981 (SOL and caps/EE reqt)

A

no admin prereq; race only (right to contract); does not apply to Fed employees; 4 year SOL; no caps; no min EE required

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
82
Q

CRA of 1991

A

provided for jury trials for T 7 and ADA; placed statutory caps; codified disparate impact theory; extended to American ERs operating abroad

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
83
Q

ADA and ADAAA

A

no discrim/retal based on (perceived) disability

84
Q

Disability under ADA

A

substantially limits a major life activity; not transitory or minor; mitigating measures and remission not considered

85
Q

ER under ADA

A

15+ employees in each working day of 20 weeks in current or prior year; govt employers exempt

86
Q

Business necessity defense under ADA

A

related to job and necessary for business; no reasonable accommodation

87
Q

Claims under the ADA

A

discrimination; failure to accommodate; retaliation

88
Q

Prima Facie claim of ADA discrim

A

qualified individual with a disability; AEA; ER knew of or perceived as disability; treated less favorably/replaced by non-disability person

89
Q

Prima Facie failure to accommodate ADA claim

A

qualified individual with a disability; ER on notice of need for reasonable accommodation; failed to accommodate; AEA

90
Q

Qualified Individual with a disability

A

person who (1) has disability that substantially limits a major life activity and who can perform the job with or without a reasonable accommodation; (2) regarded as having a disability; or (3) record of having a disability

91
Q

Reasonable accommodation

A

ER can propose; must engage in interactive process; no RA if undue hardship on ER (monetary or massive change)

92
Q

Medical exams for ADA

A

only request if necessary to understand for accommodation or leave; can ask for second and 3rd opinions at ER expense; must be kept separate and confidential.

93
Q

Pregnancy Discrimination Act

A

extended T 7 “because of sex” to pregnancy

94
Q

ADEA

A

Age Discrimination in Employment Act of 1967

95
Q

ER covered by ADEA

A

20+ employees.

96
Q

Individual supervisory liability under ADEA?

A

No.

97
Q

Admin prereq for ADEA?

A

Yes, same as T 7

98
Q

Prima Facie claim for ADEA

A

(a) age 40+ older (b) qualified (c) AEA (d) replaced by substantially younger person or otherwise discriminated against b/c of age

99
Q

Benefits under ADEA

A

requires same benefits to EEs age 65+ as younger group; requires continued pension accruals regardless of age

100
Q

Remedies under ADEA

A

same damages as FLSA, including LD up to equal amount of monetary damages if willful; NO punitive or comp damages; attorneys fees and costs; injunctive relief

101
Q

OWBPA (Older Workers Benefit Protection Act)

A

Amended the ADEA to prohibit age disrim in EE benefits unless ER shows equal benefits for older workers costs more; requires waiver to be knowing and voluntary (i.e., clearly written, chance to consult attorney, 21 day consideration, 7 day revocation periods)

102
Q

Can ask for RTS letter from TWC / EEOC

A

after 180 days

103
Q

Prima Facie case under TCHRA

A

(a) protected class (b) AEA (c) treated less favorably.

104
Q

Pretext-plus standard under TCHRA

A

if ER proffers LNDR for AEA, then EE must show that discriminatory reason was the REAL reason.

105
Q

3 part test for religious institution

A

(1) financial and managerial ties b/w religious org & activities conducts through EE; (2) ties b/w function of org. activities and the religious tenets of org. If second prong does not apply, then (3) ask whether EE position bears substantial relationship to rel org of ER

106
Q

Right to jury under TCHRA?

A

not statutory, but courts have said yes

107
Q

Lilly Ledbetter Fair Pay Act of 2009

A

In context of discriminatory pay, each paycheck triggers new EEOC charging period

108
Q

Faragher Ellerth defense

A

applies to vicarious liability; ER took steps to prevent harassment and EE failed to take reasonable advantage of the opportunity.

109
Q

Polygraph Protection Act

A

ER cannot require polygraph unless reasonable suspicion to believe EE was involved in theft. Cannot use it as reason to terminate.

110
Q

FLSA qualifications

A

EEs doesn’t matter; ER must be engaged in interstate commerce with $500K+ gross revenue; minimum wage and hour requirements

111
Q

Independent contractor test

A

“Economic Realities” six-factor test to determine if IK is an EE under the FLSA; FLSA doesn’t apply to IK

112
Q

SEPTTIC

A

Skill; Exclusivity; opportunity for Profits/Loss; Tools and equipment; Term of employment; Integral part of business; Control

113
Q

Overtime

A

hours worked over 40 in a workweek (any 7 day consecutive period)

114
Q

Who is an EE under FLSA?

A

“suffer or permit to work”; non-exempt

115
Q

For what work must an EE be paid?

A

Time performing duties; time driving between duties after reporting to work/before end of day; “engaged to wait;” short breaks; donning/doffing if not de minimis and if required for job; time driving to site if beyond where usually works; meetings/training unless not related to/during work, not required, and does not perform work during meeting.

116
Q

Minimum wage

A

$7.25 ($2.13 for tip EE); cannot cause wages to fall below MW for ER-caused deductions (except perhaps food)

117
Q

Tipping and minimum wage

A

EE who receive more than $30/mon in tips; customer-facing; can be paid $2.13/hour so long as their pay and tips equal minimum wage.

118
Q

Tip credit

A

ER can pay $2.13/hour so long as tips to EE equal minimum wage; EE must be informed of tip credit; tips must all be retained by EE subject to tip pooling; tip pooling allowed for EE who regularly receive tips

119
Q

Tip pooling

A

Tipped EE cannot be required to contribute greater % of their tips than is customary and reasonable (not questionable if does not exceed 15% of EE tips); can only be pooled among tipped EE

120
Q

Calculations of OT

A

1.5X regular rate

121
Q

Calculations of regular rate

A

all renumeration paid in workweek (including bonus, per diem, stipend, commission) / hours worked = regular rate. Texas allows remaining OT to be paid at 1/2 of regular rate

122
Q

Fluctuating workweek

A

Allowed so long as minimum wage and OT requirements met

123
Q

FLSA “salary basis” test

A

paid regularly (weekly or less frequently), not subject to how EE performs job or how many hours they actually work in a week unless entire day off

124
Q

Child Labor Laws

A

generally, kids under 14 cannot be employed. If they are, must be in non-hazardous jobs and cannot interfere with school. Some limits on times when school not in session.

125
Q

How to calculate OT for tip-credit EE

A

Calculate what the “tip credit” is (MW minus actual hourly rate); then calculate what the minimum OT would be if paid straight MW ($7.25 X 1.5 = $10.875); then subtract the tip credit from the minimum OT rate = OT for tip-credit EE

126
Q

remedies under Tip rules

A

up to 3 years calc of underpayments; LD equal to amt of back pay; attorneys’ fees; liability for all EE subject to illegal tip pool

127
Q

SOL for FLSA

A

2 years; 3 years if willful (knew or showed reckless disregard)

128
Q

Remedies under FLSA

A

all amounts due; interest; attny fees and costs; LD automatic unless ER shows act was in good faith/reasonable belief of compliance. Civil fines ($1100+) and Criminal penalties, too.

129
Q

Collective Action under FLSA

A

FLSA Section 216(b); notice stage; conditional certification; SOL continues; discovery; decertification; trial

130
Q

Recordkeeping requirement under FLSA

A

ER must make, keep and preserve records for each EE, including personal info; workweeks and hours; earnings; regular hourly rate; OT pay; deductions; pay period wages; date of payments

131
Q

Posting requirement under FLSA

A

ER must post FLSA notice in conspicuous places explaining MW and OT provisions

132
Q

FLSA Exemptions

A

Executive; Highly-compensated; Administrative; Sales person (outside sales and retail); Computer professional; learned professional; creative professional

133
Q

Salary threshold for Exec., Prof., Admin. FLSA exemptions

A

$684/week or for Highly-paid: $107,432/year

134
Q

Executive exemption

A

Salary basis; management constitutes primary duty; customarily & regularly directs work of 2+ FT EEs; authority to hire/fire

135
Q

Administrative exemption

A

salary basis; primary duty is performance of office or non-manual work related to management or general business operations of ER/ER customers; primary duty includes exercise of discretion & independent judgment with respect to matters of significance

136
Q

Highly Compensated Employee exemption

A

salary basis; customarily and regularly performs any one or more duties of Executive, Administrative, Learned Professional or Computer Professional exemption; primary duties involve office or non-manual work.

137
Q

Other FLSA exempt employees

A

amusement/recreational establishments; fish processing; agricultural workers; Railway Labor Act; domestic servants; forestry/logging operations; newspaper delivery; home care workers if spend no more than 20% of time providing care to patient.

138
Q

SOL for ULP claims

A

6 months Statute of Limitations

139
Q

OSHA

A

Occupational Health and Safety Act of 1970

140
Q

ER covered by OSHA

A

any who have 1+ employee and work involves interstate commerce; not self-employed, immediate family EE; EE covered by other federal agencies; public EEs in gov’t

141
Q

General Duty Rule (OSHA)

A

ER must furnish workplace free from recognized hazards that cause/likely to cause death or serious physical harm

142
Q

ER violates General Duty rule when (OSHA)

A

(a) failed to render workplace free from recognized hazard that was (b) causing/likely to cause death or serious physical harm, (c) hazard was recognized by industry, and (d) feasible measure existed that would have materially reduced likelihood of hazard

143
Q

Can OSHA issue citations for violating general duty even if no specific OSHA standard applies?

A

Yes, but applies GD standard

144
Q

Variances allowed under OSHA

A

ER can obtain a variance from Sec of Labor excusing complaince with standard: Temporary; Permanent (operations/conditions are safe and comliant with intent of standard); Experimental

145
Q

Experimental Variance (OSHA)

A

Allows ER to obtain variance from Sec Labor excusing strict compliance with standard if ER is participating in effort to demonstrate or validate new job safety techniques

146
Q

OSHA standards

A

(a) safe workplace, (b) safe tools & equipment, including PPE; (c) provide training and supervision for EE to enable them to deal with / recognize hazards; (d) if ER has 10+ EE or not in a low-hazard industry, ER must maintain records & post conspicuously; and (e) report injuries

147
Q

OSHA recordkeeping

A

Must retain forms for 5 years (medical for 30 yrs); post in conspicuous places; Form 300: injury and illness log & summary; Form 300A: Summary of work-related injuries/illnesses; Form 301: Injury & Illness Incident Record

148
Q

OSHA reporting requirements

A

report accidents to OSHA w/in 8 hours of occurrence if 1+ fatality or hospitalization of 3+ EE (within 30 days of incident)

149
Q

OSHA Agencies

A

Enforced by Area Director of Region; adjudicated by OSHA review commission (OSHRC); legal counsel is office of Solicitor (DOL)

150
Q

OSHA sanctions

A

Citation shall set reasonable time for abatement; max for serious injury that ER did not exercise reasonable care/diligence: < $7k per violation (per day). Repeat violation: $70k. “Willful violation”- minimum is $5k < $70k

151
Q

OSHA SOL to issue citation

A

6 months

152
Q

Criminal penalties for OSHA violation

A

$10k fine and < 6 mons prison for 1st violation; subsequent violations - $20k and 1 year prison

153
Q

OSHA preempt common or statutory state law?

A

No.

154
Q

Violations of OSHA admissible? Negligence per se?

A

Yes, admissible, but not negligence per se

155
Q

OSHA mitigating factors

A

Gravity of violation; size of ER business; ER good faith; ER history of violations

156
Q

ER defenses to OSHA violations

A

A) unpreventable EE misconduct: (1) est work rule would prevent violation, (2) adequately comm work rule to EE; (3) monitoring in place; and (4) violations of rule uniformly enforced; B) Failure to cite in 6 mons; C) Lack of jurisdiction

157
Q

ER SOL to file notice of contest of OSHA violation

A

15 working days after receiving citation

158
Q

SOL time for Sec of Labor to file complaint with OSHRC seeking affirmation of OSHA citation

A

20 days after notice of contest

159
Q

SOL for ER to file answer to Sec of Labor complaint (OSHA)

A

20 days

160
Q

ALJ hearing on OSHA complaint

A

no less than 30 days notice of hearing

161
Q

What if no hearing within 30 days

A

Complaint is deemed denied

162
Q

SOL to file petition of review of OSHA ALJ to OSHRC

A

30 days after hearing order

163
Q

OSHRC decision becomes final ___ days after notice of decision filed if no appeal to COA

A

60 days

164
Q

COA decision becomes final ___ days after order unless appealed to SCOTUS

A

90 days

165
Q

SOL to file petition to appeal new OSHA regulation to COA

A

within 60 days of rule’s publication

166
Q

Formal settlement agreement with OSHA becomes final __ days after ALJ approves the settlement

A

30 days

167
Q

Can ER get attorneys’ fees/costs back in OSHA dispute?

A

Yes, if OSHRC finds OSHA’s position was not substantially justified

168
Q

Informal Settlement Agreement (OSHA)

A

Area Director has authority to enter informal settlement agreement with ER before ER files notice of contest, which is effective so long as it’s signed before the 15 days expires; becomes effective 15 days after signature

169
Q

If ER wants to make “substantial” change to the Informal Settlement Agreement…

A

deemed to be a notice of contest; penalties if filed after 15 days after parties’ signature to informal settlement agreement

170
Q

FMLA

A

Family and Medical Leave Act of 1993; protects job for 12 weeks of leave to care for new baby or sick family member/self

171
Q

FMLA coverage

A

50 EE (any type); interstate commerce; EE must have worked 12 months and 1250 hours in last 12 month period (must work in location with 50+ EE within 75 mi radius)

172
Q

Joint Employer under FMLA

A

“integrated ER” test: (1) common management, (2) interrelated operations, (3) centralized control of HR/labor relations, and (4) degree of common ownership/financial control

173
Q

Equitable estoppel (FMLA)

A

If ER makes EE believe EE is covered, then EE is covered.

174
Q

Serious Health Condition (FMLA)

A

illness, injury, impairment, or physical/mental condition that involves inpatient care; incapacity & treatment/pregnancy/chronic conditions/long term conditions, or conditions that require multiple / regimen of treatments.

175
Q

Four methods of calculating 12-week FMLA leave

A

Calendar year; any fixed 12-month period; 12 months measured forward from date any EE’s first FMLA leave beings; rolling 12 mos period measured backward from date EE uses any FMLA leave.

176
Q

EE rights under FMLA

A

12 weeks of leave (26 if caring for military family); continuation of benefits at previous premium cost; reinstatement to equivalent or “virutally identical” job unless not available, then comparable job

177
Q

SOL for FMLA violations

A

2 years (3 years if willful)

178
Q

FMLA claim types

A

interference; discrimination; retaliation

179
Q

Mixed motive in FMLA

A

defense if LNDR was other reason

180
Q

FMLA remedies

A

like FLSA and ADEA: lost compensation (plus interest), equitable relief, attorney fees/costs, and LD unless good faith; NO comp/punitive damages; collective action allowed

181
Q

FMLA recordkeeping

A

Must keep records for 3 years. Must include: dates of leave, notices, disputes, med cert records, payroll data, benefits payment info, leave Policies

182
Q

Can ER require EE to take other paid leave during FMLA?

A

Yes

183
Q

Equal Pay Act of 1963 (part of FLSA)

A

cannot discriminate based on sex. Elements: (1) equal pay (2) substantially equal work, (3) same facility, and (4) similar conditions

184
Q

Administrative prerequisite for FMLA?

A

No, but can report violations to DOL

185
Q

Worker Adjustment and Retraining Notification (WARN) Act

A

ER with 100+ EE must give 60 d notice to EE at signle site if plant closing (50+ EE) or mass layoff (50 EE and at least 33% of active workforce at single site, or 500 EE)

186
Q

Timing of WARN req’ts

A

all lay-offs occurring within a 30-day period will be aggregated; presumption that all layoff/termination decisions occurring w/in 90 d of one another are part of a single decision

187
Q

Recipients of WARN notice (there are 4)

A

(1) Chief elected ofcr of union rep. for affected EE; (2) Each EE not represented by a union; (3) State Dislocated Worker Unit; and (4) Chief elected official of unit of local government.

188
Q

SOL for WARN violations

A

2 years or 4 years (unclear in statute)

189
Q

Vietnam Veterans Readjustment Assistance Act (VEVRAA)

A

Prohibits contractors who have K with Fed or subK with $100k+ (unless outside US) from discriminating against Vietnam-era veterans who served in Vietnam or were on active duty between approx 1961 - 1975 or were discharged for service-connected disability during that time. Must take Affirmative Action and comply with job posting and notification requirements, as well as Affirmative Action Plan (“AAP”)

190
Q

Rehabilitation Act of 1973

A

Same applicability as VEVRAA; prohibits discrimination by fed and fed contractors based on discrimination; notice and posting requirements and anti-discrimination and AAP

191
Q

Uniformed Services Employment and Reemployment Rights Act (USERRA)

A

covers all ER no matter what size; general reinstatement rights to any EE who leaves to serve in military, voluntarily or involuntarily; EE is entitled to reinstatement upon return and satisfactory completion of service term.

192
Q

Undue hardship defense under USERRA

A

ER not obligated to reemploy EE if ER’s circumstances have changed to extent that reemployment would be unreasonable, impossible, or would impose undue hardship; only when it would require a creation of a useless job or where there has been RIF that reasonably would have included service member.

193
Q

If EE not qualified for position under USERRA

A

then ER is obligated to make reasonable efforts to train the EE

194
Q

Escalator principle (USERRA)

A

EE is reinstatement to position where service member would have been had he/she kept the position continuously.

195
Q

Prompt requirement (USERRA)

A

ER has 2 weeks to reinstate service member

196
Q

EE requirements under USERRA

A

must have been other than dishonorable discharge; not absent for more than 5 years unless 5+ years required for initial term of service; if longer than 31 days, can be requested to provide documentation of service and discharge; must promptly re-apply to job (varying deadlines depending on length of service)

197
Q

Deadlines for EE’s USERRA reemployment application

A

Less than 31 d - first regularly scheduled work day after 8 hours EE returned home; 31-180 days - within 14 days of completion of service; 181+ days - 90 days after completion of service; service-connected injury/illness - may be extended for up to 2 years.

198
Q

USERRA types of claims

A

no discrimination or retaliation; mixed motive okay- must be “motivating factor”

199
Q

Texas Payday Act

A

exempt EE paid 1X per month; nonexempt EE paid 2X/mon; if terminated, paid w/in 6 days; if quits, paid next payday; no garnishment unless previous permission in writing or court order; cannot garnish >50%; priority is child support payments; ER can charge small admin fee; if emp terminated, ER must notify CT of new address within 7 days; ER cannot discrim against EE

200
Q

deadlines under Texas Payday Act

A

EE must file complaint with TWC < 180 d after date wages claimed became due; ER must respond in 14 d

201
Q

procedure for Texas Payday Act claim

A

EE files complaint w/in 180 days; ER answers in 14 days; TWC issues preliminary wage determination (PWD); EE/ER can appeal PWD within 21 days; notice of hearing w/in 21 days and hearing date no later than 45 d after notice mailed; after hearing, ER or EE have 14 d to appeal/file motion for rehearing; final order issued; ER or EE may sue to appeal TWC final order w/in 30 d (*Similar under Texas Unemployment Act, except 28 d to file appeal)

202
Q

Remedies under Texas Payday Act

A

3d degree felony if ER intends to avoid paying wages and fails to pay after demand; offense for each pay period at issue; Injunctive relief (AG may seek against ER); bad faith - Commission may assess admin penalty in amt of wages or $1,000, whichever is less.

203
Q

Waiting period to file for unemployment (Texas Unemployment Act)

A

7 days

204
Q

Eligibility for benefits under Unemployment Act

A

1) reported wage credits of statutorily specified amount during base period, 2) register for work and continue to report to employment office, 3) make claim for benefits, 4) unemployed for 7 d waiting period, 5) be able to work without restriction, and 6) participate in reemployment services (diligently search for work at least 3X/week)

205
Q

SOL under USERRA

A

non specified, but some courts have applied 4 years

Labor and Employment Law (1 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions